Whistleblower Sandra Hightower Black fights back tears while Sens. Claire McCaskill (left) and Ron Wyden (center) look on with whistleblower Walt Tamosaitis (right) during a press conference on Thursday, July 14, 2016, to announce the release of a Government Accountability Office report that criticized the Energy Department and its contractors for enabling a culture of retaliation against workers who point out problems.Patrick Malone/ Center for Public Integrity

The Energy Department lets its private contractors police themselves, producing “chilled work environments” in which employees who find wrongdoing have no useful path for complaints

Introduction

“The department is guilty of willful negligence at best, and at the worst, actively aiding the violation of whistleblower rights.”

– Sen. Ron Wyden, D-Oregon

At laboratories and factories where American nuclear weapons are designed and built, and at the sites still being cleansed of the toxic wastes created by such work, contractor employees outnumber federal workers six to one. That makes them key sentinels when something goes awry, a circumstance that officials say explains why they get legal protections when whistleblowing.

That’s the theory. It turns out that the Energy Department has actually handed most of the oversight over these protections to the contractors themselves, robbing workers at key nuclear weapons sites of confidence that pointing out security and safety dangers or other mistakes won’t bring retaliation, according to an audit released by the Government Accountability Office on July 14.

The Energy Department’s decision to embrace contractor self-regulation of its whistleblowing protection system means in many cases that those overseeing it work for the contractors’ top lawyers, who must defend the contractor against employee claims of wrongdoing, or for those officials responsible for deciding about job cuts, the report disclosed.

The result has been a climate of widespread anxiety: At four of five nuclear weapons sites where DOE conducted surveys from 2012 to 2014, roughly a third of the employees said they disputed a claim that “management does not tolerate retaliation,” the report said. More rosy contractor-run surveys were marked by “leading or biased interview questions and problems assuring confidentiality during interviews,” the GAO said.

At the Energy Department’s Hanford Nuclear Site, for example, a contractor employee reported that in the first iteration of one such survey, specific responses could be linked directly to those participating, and after revisions, the employee had heard managers “were pressuring employees to give favorable responses.” Many of the results were deleted before being analyzed, the employee said – part of a series of flaws that DOE overlooked.

The report disclosed that despite some highly-publicized instances of retaliation against whistleblowers in the nuclear weapons complex, and many public statements by DOE and contractors of support for transparency and technical dissent, DOE has only three times punished contractors who retaliated against whistleblowers in the last 20 years. One of those punishments was just a stern letter.

Sen. Ron Wyden, D-Oregon, who requested the GAO report with two Senate colleagues, said at a Capitol Hill press conference about it that “in my view, the department is guilty of willful negligence at best, and at the worst, actively aiding the violation of whistleblower rights.” The government’s costly cleanup of the Hanford site, located in Wyden’s home state, has been tainted by repeated allegations of retaliation against whistleblowers.

When DOE allows “contractors to grade themselves on how well they treat whistleblowers,” Wyden said, it’s a rigged test and “there is no failing grade.”

Sen. Claire McCaskill, D-Missouri, who appeared with Wyden at the press conference, said she suspected that contractors have been muffling dissent because heeding whistleblowers’ safety warnings delays projects and causes contractors to lose out on lucrative bonuses that are conditioned on good and timely performance. “This is all about everything going smoothly so they get the plus-ups that are baked into the contracts,” McCaskill said.

In a written response attached to the report, DOE’s top oversight official on safety and security matters, Glenn Podonsky, reiterated what he described as the department’s “commitment to foster a work environment that encourages open communication, a questioning attitude and an organizational culture that promotes the free expression of safety concerns by our workforce.” He said that while progress had been made, DOE “acknowledges that work remains.”

But the GAO report was scathing about the department’s long record of inaction. It said “DOE has taken limited or no action to hold contractors accountable for creating a chilled work environment – in part because DOE has not clearly defined what constitutes evidence of a chilled work environment or the steps needed to hold contractors accountable.” DOE officials have been crafting new, stronger regulations for whistleblower protection since 2008, and they’re still not complete, the report said.

“Our problems are with the way [the Energy Department] allows the contractors basically to self-assess how open their environment is,” Diane LoFaro, the assistant team leader for the GAO’s investigation, told The Center for Public Integrity in an interview. “Our recommendation is that those assessments need to be independent. The contractor should not be assessing themselves. The DOE should be assessing the contractors’ cultures.”

The problems run deeper than self-regulation, the report states. When contractor employees have brought concerns directly to the Energy Department, partly out of fear of retaliation by their bosses, the department has often referred those complaints back to the contractor, potentially jeopardizing the complainer’s anonymity or creating the appearance of “impaired independence” at DOE. And a program meant to adjudicate such issues within DOE is procedurally complex and sometimes too challenging for workers, the report said.

Monitoring whistleblowers to suppress them

To prepare their report, auditors from the GAO interviewed whistleblower protection officers – known formally as “employee concerns program” managers – from the DOE and its contractors at the 10 sites with the largest budgets between 2014 and 2016, and reviewed 87 whistleblower cases form those sites between 2009 and 2014. “All of the DOE [employee concerns program] managers we interviewed regarding the issue told us that they were aware of contractors that had created chilled work environments,” the GAO report said.

One such manager, at a site that was not named, went so far as to write a Freedom of Information Act request to get emails between the worker and the DOE’s whistleblower protection office. During a mandatory meeting with everyone from the manager’s department in attendance, he warned employees not to raise concerns with DOE’s whistleblower protection office.

“After the incident, officials told us there was a substantial drop in the number of employee concerns received from employees of that contractor,” the GAO report said. The whistleblower protection officer told his supervisors about the situation, but they didn’t act on it, and generally – according to the officer’s account – were not responsive to retaliation complaints.

“Knowing what I know about the [employee concerns program], if I had a concern, I would not use it,” that protection officer told the GAO.

An Energy Department official told the auditors about similar harassment, according to the report. He said that a contractor at the nuclear site he’s assigned to help oversee insists on its lawyer being present for every whistleblower discussion, even during the earliest informal stages, long before it’s evident whether resolving an employee’s complaint will be contentious. “He believes this practice may be intimidating to employees,” the GAO report said of the official.

The auditors experienced some of this themselves, they noted. During their visit to a nuclear weapons site they did not name, a contractor insisted on its lawyer being present at all the meetings, including the officer in charge of fielding whistleblower complaints. “During our meetings, the attorney advised his client not to answer certain questions or, in some cases, provided the answer for the client,” the GAO report said. Those interactions “were extremely tense and did not result in a free exchange of information.”

Sandra Hightower Black, who headed the employee concerns program at Savannah River Nuclear Solutions, LLC, in Aiken, S.C. – a consortium of Fluor Corporation, Honeywell International Inc. and Newport News Nuclear Inc. – told the press conference that she repeatedly witnessed such acts of intimidation. She said one manager pressured an investigator in her office to flip a whistleblower complaint that had been substantiated and categorize it as unfounded. Another manager demanded the name of the “rat” in a whistleblower case.

To executives at the company, Black said, she eventually became “an employee advocate,” which they regarded as a liability. A 59-year-old single mother, Black trembled at the press conference behind dark-framed glasses, as she said she was eventually fired for doing what she thought she was supposed to do.

“I would not lie or cover up substantiated concerns or engage in unethical or illegal activities that I was directed to do,” she said.

In an email Thursday, a spokeswoman for Savannah River Nuclear Solutions denied that Black’s firing had anything to do with her cooperation with the GAO. “We deny in the strongest possible terms, that Ms. Black was terminated for an improper reason or in violation of any law or regulation,” Angeline French wrote. “SRNS disputes Ms. Black’s version of events, and we are in the process of vigorously defending against her allegations through the appropriate legal channels.”

French wrote in the email that Savannah River Nuclear Solutions is paying for its own legal defense in Black’s case. But the Energy Department typically reimburses contractors for the settlements they reach in such whistleblower cases, the GAO report said.

Black’s case is still pending. But the report said other contract employees at the Savannah River site told the auditors that a poor climate persisted there:

“We were told that if you talk to DOE, you will not be considered part of the team.”

“They will make an example of anyone who challenges them.”

“Employees are very afraid to raise safety issues at the meetings because they will be terminated or embarrassed.”

“They fired the [employee concerns program] Manager. What do you think they will do to me?”

A whistleblower from the Hanford site, Walter Tamosaitis, also appeared at the press conference. He’s an engineer who worked on the management team constructing the Waste Treatment and Immobilization Plant at Hanford, a project long plagued by delays and cost overruns. In 2010, he spoke up at a management meeting about his worries that the costly plant would be unsafe, and even provoke an unexpected nuclear chain reaction. Tamosaitis almost immediately was kicked off the project and spent the next 18 months in a windowless basement office, before finally being fired.

Last year, one of the major contractors at the site, AECOM (formerly URS Construction), agreed to pay 69-year-old Tamosaitis $4.1 million, but did not admit wrongdoing. He said at the news conference Thursday that the suppression of dissent by DOE contractors is motivated by “greed.”

August 30, 2018

June 14, 2018

The GAO noted that the Nuclear Regulatory Commission handles whistleblower protections differently. Unlike the DOE, the commission tracks every case of reported retaliation, even if it’s not substantiated. When investigating claims of retaliation, the NRC studies whether managers at the site in question are generally open to workers’ raising safety concerns. If the NRC determines that it is not, a public letter is issued to assure the workforce that the regulators are monitoring the situation. Neither of these steps occurs in retaliation cases involving the Energy Department and its contractors.

In 2013, McCaskill authored an amendment to the National Defense Authorization Act meant to reform how the department’s contractor whistleblower cases are adjudicated. McCaskill’s amendment directed that whistleblower complaints — in lieu of being decided in a court-driven process that can be difficult to navigate or afford — be adjudicated by the independent Inspector General’s office.

Lawmakers in the House of Representatives changed the language, however, and turned what McCaskill intended to be a permanent solution into a temporary pilot program that ends in 2017. The Senate has passed legislation this year that would make the process permanent, however, and a House bill to achieve the same goal is awaiting a vote.